Tuesday, October 17, 2017

Pennsylvania Superior Court Upholds Exclusion of Coverage for Resident Non-Family Members Not Listed On Auto Policy

In the case of Safe Auto Insurance v. Oriental-Guillermo, 2017 Pa. Super. 297 (Pa. Super. Sept. 18, 2017) (Dubow, J., Solano, J., and Ford Elliot, P.J.E) (Majority Op. by Dubow, J.) (Dissenting Op. by Ford Elliot, P.J.E.), the Pennsylvania Superior Court ruled that a automobile insurance policy issued by Safe Auto that excluded coverage for non-family members who live with the vehicle owner but who were not specifically included under the policy is enforceable under Pennsylvania’s Motor Vehicle Financial Responsibility Law.  

The panel essentially ruled that the policy was consistent with the MVFRL because that statute places the burden of making sure a driver is insured on the vehicle owner, and not upon the insurance companies.

The court rejected the Plaintiff’s argument that Safe Auto’s provision violated the mandate of the MVFRL of having an owner ensure that all drivers are covered by insurance.   The court noted that the MVFRL does not require a shifting of the burden to the insurance companies to discover the identities of resident, non-family member insureds who may have access to an insured’s vehicle.  
 
Rather, the court felt that that burden was more appropriately placed in the hands of the insured.  
 
 
The Majority Opinion written by Judge Dubow can be viewed HERE.

The Dissenting Opinion by Judge Ford Elliott can be viewed HERE.


Source: Article “Superior Court Rules Unlisted Resident Driver Exclusion is Okay” by Max Mitchell. The Legal Intelligencer (September 22, 2017).  

Monday, October 16, 2017

Current Law of Intentional Infliction of Emotional Distress Claim Reviewed

 
 
In his recent decision in the case of Nehme v. Churla, 2017 W.L. 4124460 (C.P. Lacka. Co. Sept. 8, 2017 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed the current status of the requirements of a claim for intentional infliction of emotional distress under Pennsylvania law.
 
The issue arose in a case in which a Plaintiff commenced an action against his former paramour seeking the repayment of money he loaned to the Defendant during the pendency of her divorce proceedings against her ex-husband.  The Plaintiff also sought the return of an engagement ring.  
 
According to the Opinion, the Defendant asserted a counterclaim for intentional infliction of emotional distress. The Plaintiff filed a demurrer to that claim on the grounds of legal insufficiency.  
 
After reviewing the current status of the law of intentional infliction of emotional distress in Pennsylvania as applied against the facts of the case, the court sustained the demurrer to the Defendant’s counterclaim. 

Anyone wishing to read this Opinion may click this LINK.

Friday, October 13, 2017

Pennsylvania Defense Institute Drafts Proposed Points for Charge for Products Liability Cases



Here is a LINK to a set of Products Liability Suggested Standard Jury Instructions drafted by members of the Products Liability Committee of the Pennsylvania Defense Institute and which has been published in the October, 2017 edition of Counterpoint, a PDI publication.   The Committee was led in this regard by William J. Ricci, Esquire, C. Scott Toomey, Esquire, and James M. Beck, Esquire.
 
These suggested instructions were drafted in response to the proposed instructions for products cases issued in the summer of 2016 by the civil instructions subcommittee of the Pennsylvania Supreme Court Committee for Proposed Standard Jury Instructions.
 
The debate over proper instructions for products cases arises out of the differing opinions as to the import and analysis of the Tincher v. Omega Flex case.
 

Bad Faith Statute Applies to Insurers Not Insurance Agents

In the case of Fertig v. Kelley, No. 16-CV-4801 (C.P. Lacka. Co. Sept. 27, 2017 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas granted judgment on the pleadings in favor of an automobile insurance agent named as a party defendant in a Post-Koken bad faith suit.

The decision was based, in part, on the court's reaffirmation of the law providing that the bad faith statute under 42 Pa.C.S.A. Section 8371 only applies to an "insurer" and not an insurance agent.

To review this decision, click this LINK.

Wednesday, October 11, 2017

Personal Jurisdiction Issues Addressed by Third Circuit (Not Precedential)


In the case of Barth v. Walt Disney Parks & Resorts U.S., Inc., No. 16-3593 (3d Cir. Sept. 8, 2017 Hardiman, Chagares, and Jordan, J.J.) (Op. by Hardiman, J.)[marked "Not Precedential"], the Third Circuit Court of Appeals affirmed the trial court’s granting of a Motion to Dismiss the case against the Defendant where the court agreed that the Defendants were neither incorporated nor had any a principal place of business in Pennsylvania and were, therefore, not properly subject to general personal jurisdiction concerning an injury that took place in another state.

Anyone wishing to review a copy of this decision may click this LINK.


I send thanks to Attorney James M. Beck of the Reed Smith law office in Philadelphia for bring this case to my attention.

Monday, October 9, 2017

Trial Court Addresses Liability of Business for Car Accident on Adjoining Road After Patron Drives Off Premises

In its decision in the case of Zurick v. Basile Italian Delight Restaurant and Pizzeria, No. S-1571-2016 (C.P. Schuylkill Co. Miller, J.), the court denied Preliminary Objections filed by a landowner Defendant who asserted that it owed no duty to a Plaintiff injured in a motor vehicle accident that occurred after a vehicle left the parking lot area of the Defendant's restaurant and was involved in an accident with a vehicle on the adjoining roadway.  

The Defendant landowner had asserted that no duty was owned to the Plaintiff under the case of Newell v. Montana West, Inc., 154 A.3d 819 (Pa. Super. 2017), in which the Superior Court ruled, in a case of first impression, that a business does not have a duty to protect its invitees against the dangers associated with adjoining roadways.   The Newell case involved a pedestrian who was struck and killed by a car after he left a show at the defendant’s premises.

The court in Zurick limited the Newell holding to accidents involving pedestrians and ruled that the driveway immunity provisions of the Construction Code Act, 35 P.S. §7210 502 (b)(4)(1) and/or the Municipalities Planning Code, 53 P.S. §10508(6), give rise to a statutory duty upon landowner Defendants related to the creation of a driveway on its premises and/or the failure to maintain such driveway so as not to interfere with the safe travel on the abutting roadway.  

 
Anyone wishing to review a copy of this decision may click this LINK.

Fundraising Gala for Lackawanna Pro Bono


Friday, October 6, 2017

TORT TALK PRACTICE TIP


TAKE PRIDE IN YOUR WRITING

Good legal writers take pride in their writing, care about their end product, and desire that the position put forth in the writing be accepted.   If the writer lacks any of these feelings about the written task before them, it will surely be evidenced in the writing.

In other words, if you don’t care about your written product, why should anyone else care to read it.

So break out that red pen and edit your writings and then re-edit them.  Then re-edit.  

Taking pride in your written submissions will naturally result in a better letter, or a more compelling brief that is free from errors and cohesive in presentation.  

Taking pride in your writing might even be the difference between winning or losing on the issue presented.
 

Thursday, October 5, 2017

Preliminary Objections Against Agency Allegations in Medical Malpractice Complaint Denied

In the case of Chairge v. Geisinger Community Medical Center, No. 2017 - CV - 1851 (C.P. Lacka. Co. Sept. 22, 2017 Nealon, J.), the court addressed preliminary objections in a medical malpractice action in which the defendants asserted that a plaintiff's agency allegations must be stricken unless the Complaint identifies the defendants' actual or ostensible agents by name, sets forth those agents' authority, and avers how the agents' alleged conduct fell within the scope of that authority or was otherwise ratified by the defendant principal.

The preliminary objections were denied after the court emphasized that the Pennsylvania Superior Court ruled three years ago in the case of Sokolsky v. Eidelman, 93 A.3d 858 (Pa. Super. 2014) that a plaintiff is not barred from asserting a vicarious liability claim against a defendant simply because the alleged agent was not named in the Complaint.

Anyone wishing to review a copy of this decision may click this LINK.

Scope of Expert Testimony in a Medical Malpractice Action Reviewed


In its recent decision in the case of James v. Albert Einstein Medical Center, 2017 Pa. Super. 293 (Pa. Super. Sept. 12, 2017 Blatt, Dubow, and Ransom, J.J.) (Op. by Blatt, J.), the Pennsylvania Superior Court affirmed the entry of a verdict in favor of a Defendant in a medical malpractice action.   In one decision of note in this case, the court found that experts in one area of medicine are qualified to address other areas of medicine covered by other specialties where the medical specialties overlap.  

The Pennsylvania Superior Court in this decision also reiterated the rule that Pennsylvania does not recognize the right of filial consortium.  Accordingly, the court found that the mother of the decedent was properly precluded from testifying about her pain and suffering in a wrongful death case.  

Anyone wishing to review a copy of this decision may click HERE.


I send thanks to Attorney James M. Beck of the Reed Smith law office in Philadelphia for bring this case to my attention.

Tuesday, October 3, 2017

Federal Court UIM Bad Faith Claim Dismissed Under Iqbal/Twombly/Fowler Standard of Review


In another decision in the case of Myers v. State Farm Mut. Auto. Ins. Co., No. 17-3509 (E.D.Pa. Sept. 6, 2017 Surrick, J.), the court granted the carrier's motion to dismiss the Plaintiff's bad faith claim filed against a UIM carrier under an Iqbal/Twombly/Fowler analysis.

The court found that the Plaintiff's Complaint lack the foundation of factual allegations in support of the bad faith claim.  The Plaintiff had generally asserted that the carrier failed to properly investigate the claims presented and failed to make reasonable offers.

The court found that the Complaint was "long on conclusions regarding the Defendant's conduct, but it fails to set forth any explanations or descriptions of what Defendant actually did."  Op. at p. 6.  More specifically, the court found that there were no factual allegations on how the Defendant failed to investigate the claim or why the offers were unreasonable.

In granting the motion to dismiss, the court did grant the Plaintiff leave to amend the Complaint.

Anyone wishing to review this decision may click HERE.

I send thanks to Attorney Lucille Bitterman from the Philadelphia law firm of Goldberg, Miller & Rubin for bringing this case to my attention.  Attorney Lori Miller of that firm was the handling defense attorney.

Motion To Remand UIM Claim Back to State Court Denied


In the case of Myers v. State Farm Mut. Auto. Ins. Co., No. 17-3509 (E.D.Pa. Aug. 21, 2017 Surrick, J.), the court denied a Plaintiff's motion to remand a federal court UIM claim back to the Philadelphia Court of Common Pleas.

In its Motion for Remand, the Plaintiff contended that the claims presented did not meet the $75,000 federal court jurisdictional limit.

After reviewing the current status of federal law pertaining to motions for remand against the allegations in the Plaintiff's Complaint, the court noted that the record before the court indicated that the Plaintiff could potentially realize a result in excess of $75,000.

As such, the Plaintiff's motion to remand was denied.

Anyone wishing to review this decision may click this LINK.

I send thanks to Attorney Lucille Bitterman from the Philadelphia law firm of Goldberg, Miller & Rubin for bringing this case to my attention.  Attorney Lori Miller from that firm was the handling defense attorney.